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Vestal v. Heart of Cardon, LLC

United States District Court, S.D. Indiana, Terre Haute Division

June 15, 2018

NIKKI J. VESTAL, Plaintiff,


          Hon. Jane Magnus-Stinson, Chief Judge

         Plaintiff Nikki Vestal worked as a Certified Nursing Assistant for a short time at Lyons Health and Living Center, operated by Defendant Heart of CarDon, LLC (which the Court will refer to as “Lyons”), while coping with the effects of diabetes. On four occasions, she suffered complications from her diabetes which caused her to leave work early. On a fifth occasion, she suffered an episode which three Lyons employees believed to be the result of methamphetamine use-not her diabetes. The employees requested that Ms. Vestal provide a urine sample for a drug test. The test, according to Lyons, was positive for methamphetamine, and so later that day Lyons terminated Ms. Vestal's employment. Lyons, however, failed to follow its written protocols for administering a drug test, and no record of the positive result exists. Moreover, the episode closely followed a written warning threatening termination if Ms. Vestal did not improve her attendance. Ms. Vestal adamantly maintains that she has never used methamphetamine and was not under the influence of methamphetamine at the time of the episode.

         Taken together, Ms. Vestal asserts that Lyons' explanation for her termination-that she was working while under the influence of methamphetamine-is a pretext and that Lyons actually terminated her because she was diabetic or because it did not want to accommodate her diabetes. In addition to this claim, brought under the Americans with Disabilities Act (“ADA”), Ms. Vestal alleges claims under the Rehabilitation Act and state law. Before the Court is Lyons' Motion for Summary Judgment, [Filing No. 53], in which Lyons argues that it is entitled to judgment in its favor on all of Ms. Vestal's claims. Resolving all factual disputes in the nonmovant's favor, Ms. Vestal has demonstrated that a genuine issue of material fact exists as to whether she was terminated in violation of the ADA. The remainder of her claims, however, fail for lack of evidence or due to legal shortcomings. The Court therefore GRANTS IN PART and DENIES IN PART Lyon's Motion, permitting Ms. Vestal's ADA claim to proceed to a negotiated resolution or trial.


         Legal Standard

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).


         Facts for Summary Judgment

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Ms. Vestal's Employment

         Ms. Vestal began working for Lyons as a Certified Nursing Assistant on January 13, 2016. [Filing No. 55-1 at 4; Filing No. 55-7 at 1.] On her Employee Health Statement, submitted to Lyons as a condition of her employment, Ms. Vestal indicated that she has diabetes. [Filing No. 55-12 at 2.] At that time, Ms. Vestal had gestational diabetes. [Filing No. 55-1 at 23.] In late January or early February 2016, Ms. Vestal was diagnosed with Type II diabetes. [Filing No. 55-1 at 23.] Ms. Vestal immediately informed Angie Jackson, Director of Nursing at Lyons, of her diagnosis. [Filing No. 55-1 at 23.] Ms. Vestal also told Ms. Jackson and many of her coworkers where she kept her medication and emergency contact information in case she had a diabetes-related episode while at work. [Filing No. 55-1 at 23-24.] Ms. Vestal did not, however, report any need for accommodations to the Corporate Benefits Manager, as outlined in Lyons' ADA policy. [Filing No. 55-1 at 7; Filing No. 55-1 at 10; Filing No. 55-17.]

         Between January 13, 2016, when she began working for Lyons, and her termination on May 2, 2016, Ms. Vestal suffered four diabetes-related episodes at work during which her blood sugar dropped severely. [Filing No. 55-18 at 6.] During each episode, Ms. Vestal became dizzy and/or passed out. [Filing No. 55-1 at 24; Filing No. 55-18 at 6.] On three occasions, Ms. Vestal's coworkers called her husband, who then took Ms. Vestal home from work; on a fourth, Ms. Vestal's coworker took her home. [Filing No. 55-18 at 6.]

         On April 13, 2016, Ms. Jackson gave Ms. Vestal an “Employee Communication Form” with a box marked “Absenteeism” checked. [Filing No. 56-2 at 1.] In the section marked “Employer Statement Regarding Incident/Occurrence, ” Ms. Jackson wrote:

Nikki has had three times of calling in within her 1st 90 days of employment and leaving early on one occasion. Nikki cannot miss any more work within 1st 90 days or will be self-termination. Nikki needs to remember that Lyons residents, family, and employees count on her for being at work when scheduled.

[Filing No. 56-2 at 1; see Filing No. 56-1 at 14 (deciphering handwritten document).] Ms. Jackson spoke with Ms. Vestal about the report but could not remember whether Ms. Vestal mentioned her diabetes during the meeting. [Filing No. 56-1 at 16.]

         B. Episode Leading to Termination

         On May 2, 2016, Ms. Vestal suffered another episode at work after changing her diabetes medication from Faxiga to Invokana. [Filing No. 56-7 at 16.] Ms. Vestal informed her coworkers that she had changed her medication. [Filing No. 56-7 at 16-17.] She was feeding residents and eating her breakfast when, a few hours into her shift, she began seeing spots, feeling dizzy, sweating, and feeling sick to her stomach. [Filing No. 56-7 at 19.] Ms. Vestal went to check her blood sugar and noted that it had dropped and was not rebounding. [Filing No. 56-7 at 23.] Ms. Vestal asked for help and was given a wheelchair and orange juice. [Filing No. 56-7 at 19.]

         Two Lyons employees, Ms. Jackson and Assistant Director of Nursing Cathy Crane, witnessed Ms. Vestal's episode and testified that they believed Ms. Vestal's episode to be symptomatic of drug use. [Filing No. 56-1 at 18-26; Filing No. 55-6 at 2-3.] In addition to the sweatiness and dizziness, they claim that Ms. Vestal picked at sores on her face and legs, had slurred speech, and could not drink from her orange juice, among other things. [Filing No. 56-1 at 18-26; Filing No. 55-6 at 2-3.] Ms. Vestal, for her part, denies several of these symptoms and explains that the “sores” were the result of an impetigo infection which she did not pick. [Filing No. 56-7 at 29-36.] It is Ms. Vestal's testimony which the Court must credit in considering Lyons' summary judgment motion.

         Upon observing Ms. Vestal, Ms. Jackson requested that Ms. Vestal take a urine drug test. [Filing No. 56-4.] Here, the parties' stories differ significantly. Lyons, properly hewing to the stringent summary judgment standard, sets forth the events as described by Ms. Vestal in her discovery responses and at her deposition: Ms. Vestal was asked to take a urine test and attempted-but was unable-to do so. [Filing No. 59-1 at 5.] Under this version of the facts-Ms. Vestal's-the positive drug screens to which Ms. Jackson, Ms. Crane, and Health Administrator Lisa Bloesing attested, [Filing No. 56-4 at 1; Filing No. 56-5 at 1; Filing No. 56-6 at 5-6], were completely fabricated because Ms. Vestal never provided a urine sample.

         In her summary judgment briefing however, Ms. Vestal now seeks to embrace parts of Lyons' version of the facts, which is that she was able to provide a sample, but the positive result was fabricated because she had not used methamphetamine. Further, she complains that the testing failed to comply with any of Lyons' policies for drug testing, which provides in part:

Policy Implementation
if the Company suspects that an associate's job performance or on-the-job behavior may have been affected in any way by alcohol or drugs, or that an associate has otherwise violated the Substance Abuse Policy, the Company will require an oral screening test, blood test, urinalysis,, or other drug/alcohol screening. Testing may include, but not be limited to, tests for cocaine, methamphetamine, THC, and opiates.
1., The associate must complete the necessary drug information and consent form prior to testing. Failure or refusal to complete the necessary paperwork is grounds for immediate discharge.
2. If confirmed test results are unsatisfactory (positive), then the associate may request a follow-up confirmation test.
3. Records pertaining to an associate's test results, rehabilitation requests, or treatment will be handled confidentially, maintained in files separate from the associates personnel file, and disclosed only to those having a legitimate need to know the information.

[Filing No. 56-9 at 1.] Ms. Vestal was not asked to complete any “drug information” or consent form and was not provided an opportunity for a “follow-up confirmation test.” [Filing No. 56-1 at 38-39.]

         Nor did the testing comply with the drug test's instructions, which provided in part:

1. The RoalltyChuck Integrated Specimen Cup provides only a qualitative, preliminary analytical result A secondary analytical method must be used to obtain a confirmed result Gas chromatography/mass spectrometry (GQMS) is the preferred confirmatory method.
2. There Is a possibility that technical or procedural errors, as well as Interfering substances in the urine specimen may cause erroneous results.
3. Adulterants, such as bleach and/or alum, in urine specimens may produce erroneous results regardless of the analytical method used. H adulteration Is suspected, the test should be repeated with Another urine specimen.
4. A positive result does not Indicate level or intoxication, administration route or concentration ...

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